from the good-for-him dept

Wow. I don't think anyone expected the trial of Matthew Crippen for modding Xboxes to kick off the way it did: with a half an hour rant from the judge complaining about nearly everything having to do with the government's case. The judge, Philip Gutierrez, even stepped back from his ruling last week that fair use couldn't be used as a defense. The judge slammed prosecutors for putting two witnesses on the stand who had apparently broken the law -- including one, a security employee from Microsoft, who had admitted to modding Xboxes himself in college -- while trying to hide that fact from the jury. But the most important point may be Gutierrez highlighting how the government seemed to be going against its own claims about the DMCA concerning the willfulness of breaking the anti-circumvention clauses:

The fair-use issue came up as the judge berated prosecutor Allen Chiu's proposed jury instructions, which included the assertion that the government need not prove that Crippen "willfully" breached the law, in what is known as "mens rea" in legal parlance. The judge noted that the government's own intellectual property crimes manual concerning the 1998 DMCA says the defendant has to have some knowledge that he was breaking the law.

"The first prosecution 12 years later, and you're suggesting a mens rea that is akin to exactly contrary to the IP manual: that ignorance of the law is no excuse?" the judge barked.

"You didn't even propose a middle ground," Gutierrez continued. "What's getting me more riled, it seems to me I cannot communicate the severity to you of what's going on here."

After the verbal drubbing was over, apparently stunned federal prosecutors asked the judge if they could recess to think about possibly dropping the case, or maybe offering Crippen a plea deal of some sort. All too often we see judges simply fall over themselves to agree with the government's position on intellectual property cases. It's nice to see some judges pushing back on some rather important points. Update: Apparently, despite all of this, the government is moving forward with its case, believing it will still prevail.

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How is that not completely hypocritical?

I don't see how this is hypocritical. Unless the witness just recently graduated college, then modding Xboxes is something he used to do, not something he is currently doing. In this particular case, the witness probably didn't realize he was doing something wrong; he probably just got a job and started spending his time doing other stuff. But regardless of why he stopped, he did stop.

Besides, since when is not being a hypocrite a criterion for being a witness? Whether the witness should also be charged with breaking the law for modding Xboxes is irrelevent to the question of whether the defendent broke the law by modding Xboxes. It may not look good, but who else are you going to get as an expert witness on modding Xboxes other than someone who's actually done it?

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What's hypocritical is that they're advocating jail time and criminal charges, while using a witness who did the EXACT SAME THING and was completely unpunished.

How do you know they didn't charge the witness? How do you know that his testifying isn't part of a plea bargain as a result of said charges? How do you know they won't charge him after they prove modding is illegal?

OK, maybe based on the literal definition of hypocracy, the prosecution is being hypocritical, but then so is any other case of a criminal getting a deal for testifying for the prosecution. Again, if you're trying to prove something is illegal, especially something as technical (to most people) as modding, then you need someone to explain it who has some credibility. I personally don't think that modding an Xbox is or should be illegal, but using this witness seems like a reasonable tactic given the prosecution's goals.

It's about time...

the pendulum starts swinging in the other direction.

One can always hope this judge dismissed the pretrial defense motions and thereby allow the trial to begin, so he could squash those who for too long have shown their true colors: by thinking and acting as if they are above the law.

Copyright law certainly has its place in our world, but when those in power unilaterally expand and abuse those rules, they should expect no quarter drawn or given. I feel this judge will be showing the prosecution just how foolish it is to spit into the oncoming wind.

Fair Use Aspect

I think the best part is the judge is most likely to let fair use back in. “The only way to be able to play copied games is to circumvent the technology,” Gutierrez said. “How about backup games and the homebrewed?”

Re: Re: I has a happy.

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Might make more sense if put in context...
The judge noted that the government’s own intellectual property crimes manual concerning the 1998 DMCA says the defendant has to have some knowledge that he was breaking the law.
“The first prosecution 12 years later, and you’re suggesting a mens rea that is akin to exactly contrary to the IP manual: that ignorance of the law is no excuse?” the judge barked.
More on the DMCA here... http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act

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he is slamming them for saying ignorance of the law is no excuse when in this case it actually is, and for the fact that they have had 12 years to figure out exactly what the law says and the first time they bring a trial in this area, they are either unaware of what the law actually says or they are willfully ignoring what the law says in order to strengthen their case.

Re: The case is proceeding

No surprise there. I don't know why everyone got their hopes up. This "hero" judge will probably be signing off on this guy's guilty verdict in the very near future.

I don't really follow how the debate over which mens rea the prosecution needs to prove has anything to do with fair use. It doesn't. The issue was whether or not the statute required the defendant know he was breaking the law. That's got nothing to do with fair use.

Besides, as the judge made perfectly clear is his recent ruling, not to mention as Congress made perfectly clear when enacting the DCMA, there is no fair use defense available in this case. I'm not saying I agree with that, but that's what the law says.

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"How do you know they didn't charge the witness? How do you know that his testifying isn't part of a plea bargain as a result of said charges? How do you know they won't charge him after they prove modding is illegal?"

Maybe it's the fact that the government tried to cover the whole thing up?

The prosecution’s decision to continue would come back to haunt them as the government’s first witness ultimately unraveled their case.

Witness No. 1, Tony Rosario, was an undercover agent with the Entertainment Software Association who told jurors Wednesday that he paid Crippen $60 in 2008 to modify an Xbox, and secretly videotaped the operation. Rosario had responded to Crippen’s advertisement on the internet, and met Crippen at his Anaheim house.

All of that had been laid out in pre-trial motions. But during his testimony, Rosario also said Crippen inserted a pirated video game into the console to verify that the hack worked. That was a new detail that helped the government meet an obligation imposed by the judge that very morning, when Gutierrez ruled that the government had to prove Crippen knew he was breaking the law by modding Xboxes.

But nowhere in Rosario’s reports or sworn declarations was it mentioned that Crippen put a pirated game into the console. Shortly before Rosario’s testimony during opening statements, defense attorney Koren Bell told jurors that there would be no evidence of that kind.

Defense attorney Callie Steele objected to the new testimony. And as court was to get underway here early Thursday, prosecutor Chiu told the judge that he first learned of Rosario’s newfound recollection days before trial. Chiu conceded he never forwarded that information to the defense.

“That fact was disclosed on Sunday,” Chiu told the judge. “We should have disclosed that to the defense right away.”

In light of that omission and “based on fairness and justice,” Chiu moved to dismiss the case, conceding that the government had made errors in its prosecution.

Re: Re: Re: The case is proceeding

Want to bet?

You should have asked me earlier. I would have taken you up on it. Kind of silly the prosecutor didn't know what level of mens rea they needed to prove. I guess that sort of thing happens with a seldom used statute. They won't make that mistake again I should think.

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I think you just highlighted one of the major reasons why copyright is bad. it is holding back advancement how can someone gain knowledge about something an improve it if they can't reverse engineer it or experiment with it.

Judges, like all humans, especially in areas where you have not thought many details through or even know the most relevant details, can be influenced. This is normal and there is a trust relationship here. The last thing a person who takes such a role seriously (where lives and laws are made or broken) is to smell duplicity from some of your working colleges. It (at least momentarily) brings into question everything they have been arguing over time and which you have tended to view with an open mind.